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70 F.

3d 123
76 A.F.T.R.2d 95-7805
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

John BENSON and Glenn Ambort, Plaintiffs-Appellants,


v.
UNITED STATES of America; Christopher L. Cardani,
Assistant
U.S. Attorney; Joseph Cloonan, Director, IRS Service
Center, Philadelphia, Pennsylvania; Michael Bigelow,
Director, IRS Service Center, Ogden, Utah; Carol Fay, IRS
District Director, Salt Lake City, Utah; Carolyn Leonard,
IRS District Director, Portland, Oregon; Michael Wakamatsu,
Acting Chief, IRS Criminal Investigation Division, Portland,
Oregon; Peter Lalic, Chief, IRS Criminal Investigation
Division, Portland, Oregon; S. Ted Elder, IRS Special Agent
Badge # 4857; Robert D. Manes, IRS Special Agent; James
Judd, IRS Special Agent; Jerry R. Wight, IRS Special Agent;
Rick Raven, IRS Special Agent; Greg Berent, IRS Special
Agent; Jerold Pierce, IRS Special Agent; J. Thomas
Hampton, IRS Agent Badge # 4724; M. Denise Gailey, IRS
Agent Badge # 4477; Michael Berry, IRS Agent; Curt
Jackson, IRS Agent Badge # 4060; Louis Pampfilio; Cheryl
Johnson, IRS Agent; Karen Hong, IRS Agent; Robert
Zavaglia, Chief of Criminal Investigation, IRS Salt Lake
City, Utah District; Dale Gailey, IRS Special Agent;
Denise Garrett, IRS Tax Investigative Aide; Dennis Packard,
IRS Special Agent, Defendants-Appellees.
and
The STATE of Nevada; The State of Oregon; Daniel Calvert,
Sheriff, Josephine County, Oregon; Linda Mcglivary, Deputy

Sheriff, Josephine County, Oregon; Jim Brissette, Deputy


Sheriff, Josephine County, Oregon; David Clear, Deputy
Sheriff, Josephine County, Oregon; Ken E. Smith, Capacity
Unknown; Josephine County, State of Oregon, Defendants.
Glenn AMBORT, Plaintiff-Appellant,
and
John BENSON, Plaintiff,
v.
UNITED STATES of America; Christopher L. Cardani,
Assistant
U.S. Attorney; Joseph Cloonan, Director, IRS Service
Center, Philadelphia, Pennsylvania; Michael Bigelow,
Director, IRS Service Center, Ogden, Utah; Carol Fay, IRS
District Director, Salt Lake City, Utah; Carolyn Leonard,
IRS District Director, Portland, Oregon; Michael Wakamatsu,
Acting Chief, IRS Criminal Investigation Division, Portland,
Oregon; Peter Lalic, Chief, IRS Criminal Investigation
Division, Portland, Oregon; S. Ted Elder, IRS Special Agent
Badge # 4857; Robert D. Manes, IRS Special Agent; James
Judd, IRS Special Agent; Jerry R. Wight, IRS Special Agent;
Rick Raven, IRS Special Agent; Greg Berent, IRS Special
Agent; Jerold Pierce, IRS Special Agent; J. Thomas
Hampton, IRS Agent Badge # 4724; M. Denise Gailey, IRS
Agent Badge # 4477; Michael Berry, IRS Agent; Curt
Jackson, IRS Agent Badge # 4060; Louis Pampfilio; Cheryl
Johnson, IRS Agent; Karen Hong, IRS Agent; Robert
Zavaglia, Chief of Criminal Investigation, IRS Salt Lake
City, Utah District; Dale Gailey, IRS Special Agent;
Denise Garrett, IRS Tax Investigative Aide; Dennis Packard,
IRS Special Agent, Defendants-Appellees.
The STATE of Nevada; The State of Oregon; Daniel Calvert,
Sheriff, Josphine County, Oregon; Linda McGlivary, Deputy
Sheriff, Josephin County, Oregon; Jim Brissette, Deputy
Sheriff, Josephine County, Oregon; David Clear, Deputy
Sheriff, Josephine County, Oregon; Ken E. Smith, Capacity

Unkown; Josephine County, State of Oregon, Defendants.


Nos. 94-4182, 95-4061.

United States Court of Appeals, Tenth Circuit.


Nov. 13, 1995.

Before MOORE, SETH, and EBEL, Circuit Judges.


ORDER AND JUDGMENT1
EBEL, Circuit Judge.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of these appeals. See Fed. R.App. P. 34(a; 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.

Plaintiffs John Benson and Glenn Ambort, who at all times have proceeded pro
se, appeal from an order of the district court granting summary judgment in
favor of defendants on all but one issue in the underlying complaint. (No. 944182. Mr. Ambort appeals from the district court's subsequent order
determining he failed to state a claim in the remaining issue, pertaining only to
him. (No. 95-4061.

In their complaint, both plaintiffs raised various allegations under the Privacy
Protection Act, 42 U.S.C.2000aa, 2000aa-7, 2000aa-11 (PPA; Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971;
the First, Fourth, Fifth, Eighth and Fourteenth Amendments; and other state and
federal constitutional provisions against state and federal defendants concerning
a federal investigation and execution of search warrants in Grants Pass, Oregon,
and Las Vegas, Nevada.2 Mr. Ambort also alleged entitlement to a tax refund.
The federal defendants moved to dismiss all claims but the tax refund claim.
They attached exhibits to the motion. Plaintiffs responded by filing a brief in
opposition, declarations, and exhibits. Converting the motion to dismiss to a
motion for summary judgment, the district court granted summary judgment on
all claims except the tax refund claim. The district court determined (1 the PPA
did not apply because plaintiffs were suspects in a criminal investigation and
the information seized did not fall within the communication exception to the

PPA; (2 the claims that defendants submitted false affidavits to obtain search
warrants failed as a matter of law; (3 the Grants Pass search warrant, by
plaintiffs' own admission, did not lack particularity; and (4 the federal
defendants were entitled to qualified immunity on the remaining claims.
4

Thereafter, plaintiffs moved for reconsideration arguing they did not receive
proper notice that the federal defendants' motion to dismiss would be converted
to a motion for summary judgment. The district court denied the motion after
determining that plaintiffs had submitted materials outside the pleadings and
therefore could not claim that they lacked notice. The district court also noted
that plaintiffs failed to object to defendants' introduction of materials outside
the pleadings. Because the district court's prior order had disposed of all claims
except the distinct and separate tax refund claim, the district court entered final
judgment under Fed.R.Civ.P. 54(b, reserving only the refund claim for further
proceedings. Plaintiffs appealed.3 (No. 94-4182.

Subsequently, the federal defendants filed a motion to dismiss Mr. Ambort's


claim for refund of taxes for failure to state a claim upon which relief may be
granted, Fed.R.Civ.P. 12(b (6, because Mr. Ambort's sole basis for refund was
that as a nonresident alien he is not subject to taxation. The district court
granted the motion. Mr. Ambort appealed. (No. 95-4061. The district court
denied leave to proceed on appeal in forma pauperis.

Although plaintiffs have filed separate briefs on appeal, they join in each others'
briefs. Mr. Ambort argues the district court erred in granting summary
judgment because plaintiffs had made requests for discovery and there are
genuine issues of material fact regarding the PPA, Bivens, and other claims.
Mr. Benson argues (1 he had no notice the district court would convert the
motion to dismiss to a motion for summary judgment, and, if he had had notice,
he would have made a Fed.R.Civ.P. 56(f motion; (2 they did not fail to state a
claim upon which relief could be granted; and (3 the federal defendants are not
entitled to immunity. We affirm.

"We review the district court's grant of summary judgment de novo, construing
all facts and reasonable inferences in a light most favorable to the nonmoving
party." Public Serv. Co. v. Continental Casualty Co., 26 F.3d 1508, 1513(10th
Cir.1994. Summary judgment is appropriate when "there is no genuine issue as
to any material fact" and the movant "is entitled to a judgment as a matter of
law." Rule 56(c.

Plaintiffs argue the district court erred in not giving them notice that the motion

to dismiss would be converted to a motion for summary judgment and in


granting summary judgment even though they had made numerous requests for
discovery. Plaintiffs believe they did everything short of filing a Rule 56(f
motion, and the district court was aware they lacked access to relevant
discovery information.
9

When a motion to dismiss raises matters outside the pleadings, it shall be


treated as a motion for summary judgment, and the opposing party shall be
given notice of such treatment in order to be permitted to file affidavits in
opposition to summary judgment. Building & Constr. Dep't v. Rockwell Int'l
Corp., 7 F.3d 1487, 1495-96(10th Cir.1993. Failure to provide adequate notice
that a motion to dismiss is to be treated as a motion for summary judgment is
reversible error. Id. at 1496. There is no reversible error or need for formal
notice in this case, however, since plaintiffs produced evidence outside of the
pleadings. See id.; Wheeler v. Hurdman, 825 F.2d 257, 260(10th Cir., cert.
denied, 484 U.S. 986(1987. "Pro se litigants [like plaintiffs] are subject to the
same rules of procedure that govern other litigants." DiCesare v. Stuart, 12 F.3d
973, 979(10th Cir.1993. We conclude the district court did not err in treating
the motion to dismiss as a motion for summary judgment without giving
plaintiffs notice of such treatment.

10

We have reviewed the briefs, record on appeal, and relevant case law
concerning the remainder of plaintiffs' arguments on appeal and conclude the
district court correctly decided those issues. Accordingly, we affirm for
substantially the reasons stated by the district court.

11

Mr. Ambort argues that the district court erred in granting appellees' motion to
dismiss his tax refund claim for failure to state a claim upon which relief may
be granted. He has also filed a motion for leave to proceed on appeal without
prepayment of costs or fees. The motion is granted.

12

Mr. Ambort's argument that he is a nonresident alien not subject to taxation is


frivolous. It is well settled that Mr. Ambort, a United States citizen born in
California and living in the United States, is subject to the tax laws. See 26
C.F.R. 1.1-1(b, (c (all citizens of United States liable for income taxes and
every person born in United States is citizen of United States; Lonsdale v.
United States, 919 F.2d 1440, 1448(10th Cir.1990(rejecting argument that
individual who is a citizen of a state is not a person under Internal Revenue
Code as "completely lacking in legal merit and patently frivolous"; United
States v. Hanson, 2 F.3d 942, 945(9th Cir.1993(rejecting allegation in criminal
case that person who was natural born citizen of Montana and nonresident is
not a taxpayer or subject to tax laws as "utterly meritless"; United States v.

Slater, 96 F.R.D. 53, 55-56(D. Del.1982(denying in forma pauperis status on


appeal and determining plaintiff's claim of no obligation to pay taxes because
he is not person within meaning of Internal Revenue Code was frivolous.
13

Upon consideration of the briefs and record on appeal in appeal No. 94-4182,
we AFFIRM the judgment of the district court for substantially the reasons
stated by the district court in its orders of June 3 and 27, 1994. We also
AFFIRM the judgment of the district court in No. 95-4061. The mandates shall
issue forthwith.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470

On appeal, plaintiffs do not contest the district court's determination that it


lacked personal jurisdictional over the nonfederal defendants and dismissal of
all claims against these defendants

The district court granted plaintiffs' motion for leave to proceed in forma
pauperis